81.02 - Power to appoint a guardian of the person and/or property; standard for appointment.

§ 81.02 Power  to  appoint  a  guardian  of  the person and/or property;            standard for appointment.    (a) The court may appoint  a  guardian  for  a  person  if  the  court  determines:    1. that the appointment is necessary to provide for the personal needs  of  that  person,  including  food,  clothing,  shelter, health care, or  safety and/or to manage the  property  and  financial  affairs  of  that  person; and    2.  that  the  person agrees to the appointment, or that the person is  incapacitated as defined in subdivision (b) of this section. In deciding  whether the appointment is  necessary,  the  court  shall  consider  the  report  of  the  court  evaluator,  as  required  in  paragraph  five of  subdivision (c) of section 81.09 of this article,  and  the  sufficiency  and reliability of available resources, as defined in subdivision (e) of  section 81.03 of this article, to provide for personal needs or property  management without the appointment of a guardian. Any guardian appointed  under  this  article  shall  be  granted  only  those  powers  which are  necessary to provide for personal needs and/or  property  management  of  the  incapacitated  person  in  such  a  manner  as  appropriate  to the  individual and which shall constitute  the  least  restrictive  form  of  intervention,  as  defined  in  subdivision (d) of section 81.03 of this  article.    (b) The determination of  incapacity  shall  be  based  on  clear  and  convincing  evidence  and shall consist of a determination that a person  is likely to suffer harm because:    1. the person is unable to provide for personal needs and/or  property  management; and    2.  the  person cannot adequately understand and appreciate the nature  and consequences of such inability.    (c) In reaching  its  determination,  the  court  shall  give  primary  consideration  to the functional level and functional limitations of the  person. Such consideration shall include an assessment of that person's:    1. management of  the  activities  of  daily  living,  as  defined  in  subdivision (h) of section 81.03 of this article;    2.  understanding  and  appreciation of the nature and consequences of  any inability to manage the activities of daily living;    3. preferences,  wishes,  and  values  with  regard  to  managing  the  activities of daily living; and    4.  the  nature  and  extent  of  the  person's property and financial  affairs and his or her ability to manage them.    It shall also include an assessment of (i) the extent of  the  demands  placed  on  the person by that person's personal needs and by the nature  and extent of that person's property and  financial  affairs;  (ii)  any  physical  illness  and  the  prognosis of such illness; (iii) any mental  disability, as that term is defined in section  1.03  of  this  chapter,  alcoholism or substance dependence as those terms are defined in section  19.03  of this chapter, and the prognosis of such disability, alcoholism  or substance dependence; and (iv) any medications with which the  person  is  being  treated  and their effect on the person's behavior, cognition  and judgment.    (d) In addition, the court shall consider all other relevant facts and  circumstances regarding the person's:    1. functional level; and    2. understanding and appreciation of the nature  and  consequences  of  his or her functional limitations.